Jurisprudence

The Most Shocking Moment During Today’s SCOTUS Confirmation Hearings

Whitehouse looks on a bit stone-faced.
Sen. Sheldon Whitehouse during the Senate Judiciary Committee confirmation hearing for Supreme Court nominee Judge Ketanji Brown Jackson. Anna Moneymaker/Getty Images

Thursday’s Senate Judiciary Committee hearings for Supreme Court nominee Ketanji Brown Jackson were much more subdued in comparison with the previous three days of outlandish and shameful attacks on the judge. Committee members questioned—without much drama—a set of panelists about Jackson’s qualifications to serve on the United States’ highest court.

There was one moment, though, that stood out both for the forcefulness of the Democratic response—which was lacking all week—and the chilling answers from one of the Republican witnesses. Alabama Attorney General Steve Marshall refused to acknowledge that Joe Biden was “the duly elected and lawfully serving president of the United States of America” in response to questions from Sen. Sheldon Whitehouse.

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Marshall was apparently there to criticize Jackson’s criminal law jurisprudence from a law enforcement perspective despite the endorsement of the Fraternal Order of Police and other police unions. Whitehouse, though, used Marshall’s presence as an excuse to grill him on his possible role in the Jan. 6 insurrection and his views on whether Biden was legitimately elected or is an illegal usurper. Compared with the previous three days of hearings, in which Republicans ran a concerted smear campaign to falsely allege Judge Jackson endangers children while Democrats mostly sat on the sidelines, Whitehouse’s aggressive line of inquiry was downright inspiring.

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Again, the video itself is also chilling, as Whitehouse repeatedly asks Marshall to acknowledge the lawfulness of Biden’s presidency and Marshall refuses.

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Here’s the transcript of that portion of the questioning, which is almost comical to read:

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Whitehouse: Is Joseph R. Biden of Delaware the duly elected and lawfully serving president of the United States of America?

Marshall: He is the president of this country.

Whitehouse: Is he the duly elected and lawfully serving president of the United States?

Marshall: He is the president of our country.

Whitehouse: Are you answering that omitting the language “duly elected and lawfully serving” purposefully?

Marshall: I’m answering the question, he is the president of the United States.

Whitehouse: And you have no view as to whether he was duly elected or is lawfully serving?

Marshall: I’m telling you he is the president of the United States.

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Whitehouse pressed Marshall to answer these questions because the attorney general was in charge of the Rule of Law Defense Fund, a policy branch of the Republican Attorneys General Association, when it put out a robocall the day before the insurrection calling on “patriots” to “march to the Capitol building and call on Congress to stop the steal.” Indeed, a mob of self-avowed “patriots” did march on the Capitol, blocking the counting of the electoral vote, and leaving at least five dead in their wake.

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Whitehouse probed Marshall’s role in the robocall. The Alabama attorney general said he had “no knowledge” of the call, its text, or how it was funded. He also denied personally soliciting money for the robocall. Ultimately, 11 Alabama residents have been arrested for taking part in the assault on the Capitol and three others who have been charged for their roles in the insurrection were arrested in Alabama.

Here is what we do know about the robocall in question: It explicitly called for a march on the Capitol, and prior to the attack, the Rule of Law Defense Fund was listed on the MarchtoSaveAmerica.com website as one of the groups “participating” in the rally along with Stop the Steal, Turning Point Action, Tea Party Patriots, and other groups. The text of the full call, as first reported by Documented, is as follows:

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I’m calling for the Rule of Law Defense Fund with an important message. The march to save America is tomorrow in Washington D.C. at the Ellipse in President’s Park between E St. and Constitution Avenue on the south side of the White House, with doors opening at 7 a.m. At 1 p.m., we will march to the Capitol building and call on Congress to stop the steal. We are hoping patriots like you will join us to continue to fight to protect the integrity of our elections. For more information, visit MarchtoSaveAmerica.com. This call is paid for and authorized by the Rule of Law Defense Fund, 202-796-5838.

Rule of Law Defense Fund leaders denounced the insurrection and claimed to have no involvement in the robocall after it came to light. Last year, though, the Alabama Political Reporter reported that then–Republican Attorney Generals Association director “Adam Piper attended a Jan. 5 meeting at the Trump International Hotel in Washington D.C., along with Sen. Tommy Tuberville, R-Alabama; Donald Trump Jr.; Eric Trump; Trump’s former National Security Advisor Michael Flynn; adviser Peter Navarro; Trump’s 2016 campaign manager Corey Lewandowski; and 2016 deputy campaign manager David Bossie.” Marshall refused to release his calendar appointments for the period to the Alabama Reporter and denied during his testimony that he was in D.C. on Jan. 6, but he did meet with Trump at the White House just a few weeks before the insurrection. Around that time, he supported a number of lawsuits to overturn the election that were ultimately roundly rejected by the Supreme Court.

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Marshall said in his testimony during Thursday’s hearing that he “denounced lawlessness … as it relates to what took place on Jan. 6,” but in the days after the election, he was a vocal backer of Trump’s Big Lie that the election had been stolen. As the Alabama Political Reporter noted, Marshall made a number of statements casting doubt on the results of the election in the lead-up to Jan. 6.

“To the extent that Americans can have a belief and a trust in the election results on Election Day then it’s hard to have faith in those leaders that will take over,” Marshall told one radio host on Nov. 16, 2020, after the race had been called for Biden.

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He told another radio host on Nov. 20 that “when they change the rules midstream and we still don’t know the results, the people of America have a reason to question the validity and the authority of what’s taken place through this recent election.”

According to the Opelika Auburn News, Marshall marked Alabama’s Electoral College Ceremony on Dec. 14 by suggesting other states had cheated. “Happily, here in Alabama, the results of this year’s election w[ere] in no way in doubt,” Marshall said at the time. “Let us celebrate what Alabama has achieved, but let us not rest, because as we’ve seen nationally, those seeking to undermine the integrity of our elections remain full of passionate energy.”

It’s clear that Marshall has not changed that view at all, and based on his selection to testify, it’s clear where the priorities of the Republican Party remain.

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